By James J. Bell and K. Michael Gaerte
In the last term, the United States Supreme Court, in Missouri v. Frye, 132 S. Ct. 1399 (2012), took a small step toward inviting trial courts into plea negotiations. In concluding that a defendant was denied effective assistance of counsel because the defense attorney failed to advise his client of a plea offer, the Supreme Court suggested that “formal offers can be made part of the record . . . to ensure that a defendant has been fully advised before those further proceedings commence.” Id. 1402.
In the same term, the Supreme Court also noted the importance of the plea-negotiation process to the criminal justice system. The court stated that “criminal justice today is for the most part a system of pleas, not a system of trials . . . As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.” Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012).
The practice of a trial court making a record of plea offers seemed to be contrary to Federal Rule of Criminal Procedure 11(c)(1), which stated that the “court must not participate in [plea] discussions.” This practice also seemed to contradict the routine assurance given to defendants in guilty plea hearings in Indiana courts that the trial court was “not a party to the plea agreement.”
During this past term, in United States v. Davila, the Supreme Court limited a trial court’s participation in the plea negotiation process. 2013 U.S. LEXIS 4541 (2013). In Davila, the Supreme Court addressed the issue of whether a court’s active participation in plea negotiations requires “automatic vacatur” of a plea agreement. Id. 4. Davila was indicted for filing more than 120 false tax returns on behalf of Florida prisoners. Id. 8. During an in-camera hearing before a magistrate, Davila requested that a different attorney be appointed to represent him because his current attorney recommended that he plead guilty. Id. 9. The magistrate judge informed Davila that pleading guilty might be a “good idea” given that the government had “all of the marbles.” Id 9-10. The court urged Davila to “come to the cross” in order to qualify for a sentence reduction by accepting responsibility. Id. 11.
Three months after this hearing, Davila agreed to plead guilty. Id. 12. During the plea hearing before the District Court judge, Davila never mentioned the “come to the cross” speech, and he stated that he had not been pressured to plead guilty. Id. Eventually, the District Court found that Davila had entered a knowing and voluntary plea and sentenced him to 115 months. Id. 13.
On appeal, Davila’s counsel, citing Federal Rule of Criminal Procedure 11(c)(1), argued that judicial involvement in plea discussions required that his plea be set aside. The 11th Circuit applied a “bright line rule,” finding that the court’s participation in plea negotiations required “automatic vacatur” of Davila’s plea without the need for an inquiry as to whether the error was prejudicial. Id. 14.
The Supreme Court rejected the bright-line rule application and took a more nuanced approach. While acknowledging that the magistrate’s colloquy with Davila violated Rule 11(c)(1), the Supreme Court still found that automatic reversal was not necessary. Id. 25. The court explained that the errors that rise to the level of automatic reversal are exceptional and that, in this circumstance, the magistrate’s error was not egregious enough to mandate reversal. Id. 28. In coming to this conclusion, the Supreme Court cited that Davila did not plead guilty until months after the error, that he expressly claimed he had pleaded guilty for strategic reasons, and that he affirmed the plea was knowing and voluntary at the time it was entered. Id. 27. In light of “the full record” the court vacated the 11th Circuit’s ruling and instructed that the “bright line” approach was inappropriate. Id.
Frye and Davila give guidance to trial courts on what they can or cannot do in plea negotiations. Furthermore, these cases guide lawyers who may wish to seek the court’s assistance in negotiations. While trial courts may make a record of plea negotiations and therefore, may be knowledgeable of the terms of a plea offer at sentencing, Davila makes clear that trial courts must not participate in defendants’ decisions to plead guilty.
Regardless of this prohibition, in practice, a trial court’s participation in plea negotiations is unlikely to result in reversible error. In Davila, the magistrate judge not only advised the defendant that the government had a strong case, but told him to “come to the cross.” This command had to have some effect on the defendant’s decision to plead guilty – and his attorney’s advice – even after three months had elapsed. In addition, the “full record” in this case, in which Davila admitted he had entered the plea agreement knowingly and voluntarily, was perfunctory, and the same record is made in most guilty plea hearings. Nevertheless, courts must use caution and care to not cross the line in discussing plea offers with the parties, and parties should be aware of the limitations on the court’s involvement in the plea negotiation process.•
James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached via email at firstname.lastname@example.org or email@example.com. The opinions expressed are those of the authors.